Appeal by defendant from judgment entered 22 July 2002 by
Judge Timothy L. Patti in the Superior Court in Gaston County.
Heard in the Court of Appeals 26 August 2003.
Thomas B. Kakassy, P.A., by Thomas B. Kakassy, for plaintiff-
appellee.
Arthurs & Foltz, by Douglas P. Arthurs and Tara R. Sain, for
defendant-appellant.
HUDSON, Judge.
On 4 May 2000, plaintiff Don Farris d/b/a Farris Piping and
Supply Co. (“Farris” or “plaintiff”) sued defendant Modern
Polymers, Inc. (“MPI”) for breach of various contracts. On 22 July
2002, the trial judge granted plaintiff's motion for summary
judgment, awarding plaintiff the sum of $89,349.48, together with
interest at the rate of 2% per month from 29 January 2000. MPI
appeals, and for the reasons discussed here, we reverse.
Farris is a sole proprietorship engaged in the business of the
connection, disconnection, and installation of specialized textile
machinery. MPI operates a polystyrene packaging facility. DonFarris, the owner of Farris Piping Supply Co., had a thirty-two-
year business relationship with Richard Hilliard, MPI's president,
during which time Farris performed a variety of services for MPI
involving heavy equipment installations.
In late September or early October 1999, Farris and Hilliard
met to discuss a potential project, which would consist largely of
Farris moving certain machines, known as Kohler presses, out of
MPI's North Carolina plant in Cherryville and installing their
replacements. The parties orally agreed upon a price of $58,000.00
for this work. Later, the parties modified the job details to
include having Farris move MPI's equipment from its McBee, South
Carolina plant to its Cherryville plant. As modified, the contract
price increased to $70,000.00. On 14 October 1999, Hilliard
drafted an internal memorandum, which described the work Farris was
to perform, and directed a purchase order to Farris for the work.
Shortly thereafter, Don Farris and his crew began removing the
old equipment from the Cherryville plant. After about one week,
however, only one Farris employee remained on the project. MPI's
new equipment arrived at the Cherryville plant 2 November 1999,
when Farris had not yet completely prepared for its installation.
On Sunday 7 November 1999, MPI shut down its Cherryville plant
for installation of the new equipment. Farris and his crew, who
had been out of town on another job, arrived at the plant early
that Sunday evening, promising to work through the night to
complete the job. Although Farris assured Hilliard that the new
machinery would be operational by the following morning, it wasnot, as work on some of the plumbing and service lines was not
completed. Farris completed the installation of the new equipment
in Cherryville the following week, but the McBee plant work had not
been done (old machines were still in place at the McBee plant).
An MPI representative contacted Farris to ask when the old
machines would be removed from the McBee plant and installed in
Cherryville, to which Farris responded, “You'll be lucky to have it
in by Christmas.” On or about 17 November 1999, Hilliard contacted
Farris and informed him that MPI was considering hiring another
firm to move the old machinery from McBee to Cherryville. Farris
agreed to this and informed Hilliard that he would deduct the cost
to hire the alternate firm from his contract price. MPI paid
Bryson Machine $13,500.00 to remove the old machinery and paid
Czerr Construction $9,752.34 to complete other work remaining under
the contract.
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. R. Civ. P. 56(c).
An issue is material if the facts alleged
would constitute a legal defense, or would
affect the result of the action, or if its
resolution would prevent the party against
whom it is resolved from prevailing in the
action. [T]he party moving for summary
judgment has the burden of establishing the
lack of any triable issue of fact.
Furthermore, the evidence presented by the
parties must be viewed in the light mostfavorable to the non-movant.
Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 358, 558
S.E.2d 504, 506 (2002) (internal citations and quotation marks
omitted),
disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002).
Thus, the first step of our analysis is to determine whether
there are any “genuine issues” of material fact. We believe that
the record before us does reveal genuine issues of material fact as
to: (1) whether all of the work for which Farris invoiced MPI was
actually completed; (2) whether Farris gave MPI proper set-offs for
work performed by other contractors; and (3) whether the contract
included any implied deadlines. Thus, plaintiff was not entitled
to judgment as a matter of law.
Indeed, the evidence of record is conflicting. According to
Hilliard's deposition testimony, MPI was forced to hire a
replacement contractor (Bryson) to remove the machinery from the
Cherryville facility to make room for the new machinery MPI had
purchased, and this work was a significant part of the work that
Farris agreed to perform. Hilliard also testified that he had to
engage a third contractor (Czerr) to complete other work that
Farris agreed to perform, and that MPI's own employees completed
other aspects of the contract between the parties. As noted above,
MPI paid Bryson $13,500.00 and Czerr $9,752.34 for the work they
performed. Although Don Farris testified that he deducted the
$13,500.00 paid to Bryson from the original $70,000.00 contract
price, we are unable to determine from the record whether this or
the $9,752.34 paid to Czerr was also deducted. The Farris ledgersheet attached to the complaint also indicates a balance of
$89,235.01, and shows no offsets. Further, we are unable to
determine what amount, if any, MPI should be credited for work
performed by its own employees. Additionally, when asked how much
MPI owes Farris, Hilliard responded:
I think we owe [Farris] for the work that he performed
that has not been invoiced. And I don't really know what
that is, because everything has been lumped into this one
lump sum. I think if [Farris] sat down with our people
or if we sat down together and he brought his records in
showing us where he spent his labor that he has not been
paid, then he should be entitled to that money.
We note that while the measure of damages is a question of law, the
amount of damages is ordinarily a question of fact.
Olivetti Corp.
v. Ames Business Systems, Inc., 319 N.C. 534, 548, 356 S.E.2d 578,
586,
reh'g denied, 320 N.C. 639, 360 S.E.2d 92 (1987). Thus, we
conclude that a genuine issue of material fact exists as to the
amount, if any, of damages plaintiff is entitled to recover.
Further, there is a genuine issue as to whether there was an
implied deadline for the completion of the work under the contract.
Generally, “[i]f no time for the performance of an obligation is
agreed upon by the parties, then the law prescribes that the act
must be performed within a reasonable time.”
Metals Corp. v.
Weinstein, 236 N.C. 558, 561, 73 S.E.2d 472, 474 (1952) (citations
omitted). In
Rawls v. Lampert, 58 N.C. App. 399, 293 S.E.2d 620
(1982), this Court stated that:
the determination of what constitutes a reasonable time
for performance require[s] taking into account the
purposes the parties intended to accomplish. Such a
determination involves a mixed question of law and fact,
[a]nd, in this State, authority is to the effect that,
where this question of reasonable time is a debatableone, it must be referred to the jury for decision.
Id. at 401, 293 S.E.2d at 621 (citations and quotation marks
omitted).
Here, both parties agree that there was no definite time set
for performance. Thus, performance was to be completed within a
reasonable time. Given the many contradictory references
throughout the deposition testimony of both Hilliard and Farris as
to the timeliness of performance, we conclude that this question is
a “debatable one” and that “it must be referred to the jury for
decision.”
Id.
Next, defendant argues that plaintiff has charged an illegal
rate of interest and urges this Court to declare a forfeiture
thereof. We decline to reach this issue, however, as it was not
brought forward by assignment of error, was not the subject of any
motion or ruled upon by the court below, and thus is not properly
before us.
See N.C. R. App. P. 10(a) and (b)(1).
For the foregoing reasons, we reverse the trial court's order
granting summary judgment in favor of plaintiff, and remand for
further proceedings.
Reversed and remanded.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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